Wardlaw v. Southern Ry. Co.

84 So. 177, 122 Miss. 180

• Court: Mississippi Supreme Court
• Decided: March 15, 1920
• Docket: No. 21085
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

Wardiaw, the appellant, brought suit against the Southern Kailway Company for the value of a house burned in the town of Pocahontas, Tenn., in which he alleges that the house was burned by sparks negligently permitted to escape from the locomotive of the defendant. The suit was for five hundred dollars, and the proof for the plaintiff was to the effect that the house burned was situated near the right of way of the railroad company and on the north side thereof; that the fire was discovered from twenty to forty minutes after the passage of one of defendant’s freight trains; that the said train was emitting sparks when it passed, though the sparks were described as small sparks, and that the house caught fire on the roof on the side next to the railroad track; that there was no fire in the house that day, and there was no source from which the fire could originate known to the witnesses. Some- of the witnesses, went to the house after the discovery of the fire, and testified that there was no fire in the lower part of the house. The fire, when first seen, covered an area of about three feet square upon the roof.

The railroad company introduced witnesses who testified that the engine in question was equipped with a spark arrester having a mesh of from three-sixteenths to four-sixteenths of an inch, and the party who inspected said, engine testified that in his opinion a spark which would pass through this netting would not carry and ignite as far! as sixty or seventy feet beyond the track of the railroad. On cross-examination he testified that, if the spark did carry this distance and ignite the roof, in his opinion the spark arrester would not be in good condition. The engineer in charge of the engine in question testified that he observed no sparks from the engine, and that if the engine was throwing sparks of unusual size or quantity that he would have seen and noted that fact. In this state of the evidence the trial judge granted a peremptory instruction for the defendant railroad company.

In Tribette v. I. C. Railroad Co., 71 Miss. 212, 13 So. 899, this court in a similar case said that in granting a peremptory instruction the court assumes as true all testimony tending to establish the issue in favor of the losing party. Such peremptory instruction should not be given, where the evidence, in any view of it which may be legally taken, is sufficient to warrant a judgment for such party. In that case it was held that the testimony by a witness that, just before the fire, in open daylight and at a distance of one hundred yards, he had seen one of the locomotives, before reaching the station, emitting sparks which set fire to the grass fifty feet from the track, is competent, as tending to contradict a showing by the defendant that the locomotives were in good order, well equipped, and carefully handled, and, in view of such testimony, it was improper to instruct for the defendant. In the present case it is insisted by the appellee that the evidence is insufficient to overcome the showing by the defendant, or to make an issue for the jury, because there was no showing by any witness that any of the sparks emitted actually ignited anything, and that there was no showing by the witnesses that the wind was blowing, so as to carry sparks such a distance as the house was from the track.

We think the authorities establish the proposition that where the sparks are carried beyond the right of way, and where there is a showing of the absence of other origin of the fire, or if the evidence establishes, with reasonable certainty, the exclusion of other reasonable origin of the fire, that the mere testimony of the defendant that its engine was equipped with reasonable appliances, including spark arresters in good condition, and was operated in a reasonable manner, does not destroy, of itself, the right of the jury to determine, from all the circumstances taken together, whether the fire originated from the engine, and whether, if it did, it was the result of carelessness and negligence. A. & V. Ry. Co. v. Barrett, 78 Miss. 432, 28 So. 820, and authorities there cited. In such case, if the jury believe the testimony of the defendant to be untrue, they may 'find for the plaintiff:. If they believe the testimony of the defendant is true — that is to say, that it had equipped its engine properly, and was operating its engine in a careful and proper manner — then the jury should find for the defendant.

We have carefully considered the evidence in this case,, and'are of the opinion that the case should have been submitted to the jury under proper instructions. The judgment will therefore be reversed, and the cause remanded.

Reversed and remanded.